Can we refuse to employ someone based on their previous unspent convictions?
While with certain exceptions, it is unlawful under the Rehabilitation of Offenders Act 1974 to refuse to employ a “rehabilitated” person on the ground of a spent conviction, the same does not apply to unspent convictions so you are able to refuse to employ someone in this situation if you wish to.
However, if you automatically reject candidates with a criminal record, regardless of when or how they got it, it will be discounting a large proportion of potentially suitable workers and therefore in deciding whether or not an applicant with an unspent conviction is suitable for a position, you should always take into account issues such as whether or not the offence is relevant to the job, how recent it was, and whether it was a one-off or one of a number of offences.
If you subsequently discover that an employee lied about, or deliberately failed to disclose, unspent criminal convictions or cautions when asked during the recruitment process, that may be grounds for a fair dismissal if the non-disclosure was dishonest, even if the employee’s conduct and performance at work has otherwise been satisfactory.
If the employee was not asked about criminal convictions or cautions but they subsequently come to light during employment, whether or not a dismissal will be fair, in this case will depend on a number of factors, including the nature of the offence and the nature of the employee’s job role. It will not be an automatic reason for dismissal but rather it will depend on whether a dismissal would be fair in all the circumstances. Consideration should be given to what effect the conviction or caution has on the employee’s suitability to continue to do their particular job and on the employee’s relationship with you, their work colleagues and your customers. What should also be considered is why the employee was not asked about criminal convictions or cautions at the recruitment stage if they were relevant to the employee’s job such as someone with caring responsibilities. The convictions or cautions most likely to impact on the employment relationship are those involving dishonesty, violence or inappropriate sexual behaviour.
A fair dismissal procedure will still need to be followed so HR advice should always be sought from an early stage.
This article was written by our HR Operations Manager, Fiona Mendel.
Fiona joined DOHR in August 2013, having qualified as a solicitor with a speciality in Employment Law.
Fiona leaves DOHR in April 2020 to continue her work as a solicitor in a Central London law firm.
She will be missed by clients and colleagues, but we wish her all the best in the next stage of her career.